Citation Nr: A21016844 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 191001-35080 DATE: October 18, 2021 ORDER Entitlement to an annual clothing allowance for the year 2019 due to the use of a back brace is denied. FINDING OF FACT The Veteran's model of back brace does not to produce wear and tear on clothing. CONCLUSION OF LAW The criteria for a clothing allowance for the 2019 calendar year for a back brace are not met. 38 U.S.C. §§ 1162, 5107; 38 C.F.R. §§ 3.102, 3.810. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service from July 1980 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2019 letter of determination by a Department of Veterans Affairs (VA) Medical Center. The Veteran submitted an Evidence Submission Review Request: Board Appeal (VA Form 10182) in October 2019, and additional evidence was received within 90 days; thus, such issue is properly before the Board. Clothing Allowance The law provides for payment of an annual clothing allowance for each veteran who, because of a service-connected disability, wears or uses a prosthetic or orthopedic appliance (including a wheelchair) which VA determines tends to wear out or tear the clothing of the veteran or uses medication which a physician has prescribed for a skin condition which is due to a service-connected disability and VA determines causes irreparable damage to the veteran's outergarments. 38 U.S.C. § 1162. One annual clothing allowance per year is payable in a lump sum, when the following eligibility criteria are satisfied: (1) A VA examination or examination report from a private physician as specified in 38 C.F.R. § 3.326 (c) discloses that the veteran wears or uses certain prosthetic or orthopedic appliances which tend to wear or tear clothing (including a wheelchair) because of such service-connected disability or disabilities and such service-connected disability is the loss or loss of use of a hand or foot compensable at a rate specified in 38 C.F.R. § 3.350 (a), (b), (c), (d), or (f); or (2) The Undersecretary for Health or a designee certifies that, because of such service-connected disability or disabilities, a prosthetic or orthopedic appliance is worn or used which tends to wear or tear the veteran's clothing, or that because of the use of a physician-prescribed medication for a skin condition that is due to the service-connected disability or disabilities, irreparable damage is done to the Veteran's outergarments. 38 U.S.C. § 1162; 38 C.F.R. § 3.810 (a). A veteran is entitled to an annual clothing allowance for each such prosthetic or orthopedic appliance (including, but not limited to, a wheelchair) or medication used by the veteran if each appliance or medication affects a distinct type of article of clothing or outergarment. 38 C.F.R. § 3.810 (a)(2). A veteran is entitled to two annual clothing allowances if a veteran uses more than one such prosthetic or orthopedic appliance, (including, but not limited to, a wheelchair), medication for more than one skin condition, or an appliance and a medication, and the appliance(s) or medication(s) together tend to wear or tear a single type of article of clothing or irreparably damage a type of outergarment at an increased rate of damage to the clothing or outergarment due to a second appliance or medication. 38 C.F.R. § 3.810 (a)(3). In determining whether a clothing allowance is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Entitlement to an annual clothing allowance for the year 2019 due to the use of a back brace. Upon review, the Board finds an annual clothing allowance for the 2019 calendar year due to use of a back brace is not warranted. In this regard, the Board acknowledges that his back brace was worn and used by the Veteran due to his service-connected disability. However, there is neither evidence of record nor an allegation from the Veteran that he has lost a foot or hand at a compensable rate due to service-connected disability as specified in 38 C.F.R. § 3.350 (a) - (f). Thus, the Board finds the service-connected back disability does not result in the requisite loss of use of the hands or feet. Therefore, under 38 C.F.R. § 3.810 (a), the Veteran can only qualify for entitlement to a clothing allowance if the brace is certified by the Under Secretary for Health or designee (e.g., a VHA Prosthetics Representative) to cause wear and tear to articles of clothing. In this regard, in the September 2019 decision, the Prosthetics Representative noted that the Veteran's prescribed Lumbosacral orthoses (LSO) was a soft latex free elastic support belt. The device has semi-rigid thermoplastic insert or flexible metal inserts fabric covered. Additionally, there was no rigid or articulating joints that would wear or tear outer garments. The exterior of the belt is covered in neoprene and has two adjustable Velcro side pulls overlap for appropriate sizing. It was concluded that soft goods are not eligible for clothing allowance. In this regard, the VA Central Office has determined that LSO, in general, were excluded as they are usually off the shelf with adequate coverage on their rigid panels. There are few, if any, moving parts. The Veteran's back brace was considered a soft good and soft goods are not eligible for clothing allowance. The Board finds that the above evidence outweighs the Veteran's descriptions to the contrary, that his brace cause damage to articles of his clothing. His back brace is made of soft flexible material, which was considered a soft good orthotic. Additionally, VA treatment records fail to document any mention of wear or tear or damage to clothing from wearing his brace. As stated above, under 38 C.F.R. § 3.810 (a), VA law provides that the Veteran can only qualify for entitlement to a clothing allowance if his brace is certified by the Under Secretary for Health or designee to cause wear and tear to articles of clothing. However, the Veteran's particular model of braces was not certified to cause wear and tear. The Board acknowledges the Veteran's argument that his back brace caused actual wear and tear on his clothing. However, the Veteran has not produced any supporting evidence showing how his clothes are damaged due to his brace. As such, the Board finds the Prosthetic Sensory Aids Service finding to be the most probative evidence of record. In light of the above, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to annual VA clothing allowance for the year 2019 due to use of a back brace. Thus, the benefit of the doubt rule does not apply for this issue. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brennae L. Brooks, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.